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SUBLICENSE AGREEMENT
This Sublicense Agreement is made as of ________________, 1998, by and among The
Ohio National Life Insurance Company (the "Sublicensee"), First Trust Advisors,
L.P. ("Licensee") and Dow Xxxxx & Company, Inc. ("Licensor").
WHEREAS, pursuant to that certain License Agreement dated as of November 11,
1997, by and among the Licensor and the Licensee, the Licensor has granted the
Licensee a license to use certain copyright, trademark and proprietary rights
and trade secrets of the Licensor (the "Dow Xxxxx Marks") in connection with the
issuance, distribution, marketing and/or promotion of the specific products (the
"Products") described in Appendix A to the License Agreement as amended and
incorporated herein;
WHEREAS, for purposes of this Sublicense Agreement the parties hereto stipulate
and agree that during the term of this Sublicense Agreement the Sublicensee's
Dow Target 10 Trust, each Series thereof and any variable annuity or variable
life insurance policy issued by the Sublicensee and investing therein shall be
treated as Products;
WHEREAS, the Sublicensee and the Licensee desire to enhance the marketability,
sales and performance of the Products offered by the Sublicensee and services in
connection therewith;
WHEREAS, the Sublicensee wishes to issue and/or sell the Products and to use and
refer to the Dow Xxxxx Marks in connection with the marketing and promotion of
the Products;
WHEREAS, the Sublicensee and the Licensee have entered into a Service Agreement
under the terms of which the Licensee has agreed to provide certain services and
advice essential to the operation of the Sublicensee's Dow Target 10 Trust; and
WHEREAS, all capitalized terms used herein shall have the meanings assigned to
them in the License Agreement unless otherwise defined herein,
NOW THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. LICENSE. Pursuant to Section 1(d) of the License Agreement, the Licensor
hereby grants to the Sublicensee a non-exclusive and non-transferable sublicense
to use the Dow Xxxxx Marks in connection with the issuance, distribution,
marketing and/or promotion of the Products.
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2. TERM. The term of this Sublicense Agreement (the "Sublicense Term") shall
commence as of the date hereof and shall remain in full force and effect for the
remaining term of the License Agreement unless (i) terminated earlier
automatically upon termination of the Service Agreement between the Sublicensee
and the Licensee or (ii) extended upon the mutual consent of all three parties
hereto.
3. CONSIDERATION. Each of the parties hereto anticipates that the undertakings
contemplated hereunder will increase the marketability and sales of the
Products.
4. SUBLICENSE OBLIGATIONS. The Sublicensee acknowledges that it has received and
read a copy of the License Agreement (excluding Schedule B thereof) and agrees
to be bound to the Licensor and Licensee under this Sublicense Agreement as if
the Sublicensee were the Licensee under the License Agreement by all of the
provisions therein imposing any obligations on the Licensee (including without
limitation the indemnification obligations in Section 9 thereof) insofar as such
obligations arise out of or relate to the Products to be issued, marketed and/or
sold by the Sublicensee, other than the obligation to pay the License Fees
imposed by Section 3 of the License Agreement.
5. SUBLICENSEE AS PRINCIPAL. The Sublicensee agrees that its obligations under
the License Agreement pursuant to Section 4 hereof are as a principal and shall
be unaffected by any defense or claim that the Licensee may have against the
Licensor.
6. LICENSEE LIABILITY. The Licensee makes no representation or warranty, express
or implied, to the owners of the Products or any member of the public regarding
the advisability of purchasing the Products. The Licensee has no obligation or
liability in connection with the administration or calculation of the Dow Xxxxx
Industrial Average (SM).
LICENSEE DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE
DOW XXXXX INDUSTRIAL AVERAGESM OR ANY DATA INCLUDED THEREIN AND LICENSEE SHALL
HAVE NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. LICENSEE
MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY
SUBLICENSEE, OWNERS OF THE PRODUCTS, OR ANY OTHER PERSON OR ENTITY FROM THE USE
OF THE DOW XXXXX INDUSTRIAL AVERAGE SM OR ANY DATA INCLUDED THEREIN. LICENSEE
MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO
THE DOW XXXXX INDUSTRIAL AVERAGE SM OR ANY DATA INCLUDED THEREIN. WITHOUT
LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL LICENSEE HAVE ANY LIABILITY FOR
ANY LOST PROFITS OR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
THERE ARE NO THIRD PARTY BENEFICIARIES OF ANY AGREEMENTS OR ARRANGEMENTS BETWEEN
LICENSEE AND SUBLICENSEE.
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7. GOVERNING LAW. This Sublicense Agreement shall be construed in
accordance with the laws of the State of New York without reference to or
inclusion of the principles of choice of law or conflicts of law of that
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Sublicense Agreement
as of the day first set forth above.
THE OHIO NATIONAL LIFE INSURANCE COMPANY
(Sublicensee)
By:
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[Title]
FIRST TRUST ADVISORS, L.P.
(Licensee)
By:
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[Title]
DOW XXXXX & COMPANY, INC.
(Licensor)
By:
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[Title]
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